Sample VVPB and Audit Legislation

This sample legislation for vvpb and machine-auditing was prepared for Vote Trust USA by Warren Stewart of National Ballot Integrity Project and Ellen Theisen of VotersUnite.Org. Please feel free to use any of the language that you find helpful.

Summary: Requires a voter-verifiable paper record of every vote, to be preserved in accordance with laws governing the preservation of ballots; defines the paper record as the true and correct record and the official record for recounts and audits. Requires the Secretary of State to establish procedures for randomly selecting machines for audits, hand counting paper ballots, and determining what constitutes a vote in hand counts. Requires machine audits by hand counting the paper ballots or paper records after each election to be conducted on 5% of the machines of each type in the state, one machine of each type in each county to be randomly selected, the rest to be selected randomly from machines at large. Sets the method of handling inconsistencies based on the HAVA requirement for voting systems to meet the 2002 FEC standards for accuracy.


SECTION [ ] VOTE-VERIFICATION AND AUDIT CAPACITY
(a) VOTE-VERIFICATION
(i) The voting system shall produce or require the use of an individual voter-verifiable paper record of the voter's vote that shall be made available for inspection and verification by the voter before the voter's vote is cast. For purposes of this clause, examples of such a record include a paper ballot prepared by the voter for the purpose of being read by an optical scanner, a paper ballot prepared by the voter to be mailed to an election official (whether from a domestic or overseas location), a paper ballot created through the use of a ballot marking device, or a paper print-out of the voter's vote produced by a touch screen or other electronic voting machine, so long as in each case the record permits the voter to verify the record in accordance with this subparagraph.
(ii) The voting system shall provide the voter with an opportunity to correct any error made by the system in the voter-verifiable paper record before the permanent voter-verifiable paper record is preserved in accordance with subparagraph (a)(i).
(iii) The voting system shall not preserve the voter-verifiable paper records in any manner that makes it possible to associate a voter with the record of the voter's vote.
(b) MANUAL AUDIT CAPACITY
(i) The permanent voter-verifiable paper record produced in accordance with subparagraph (a) shall be preserved in the same manner as paper ballots are preserved in the state in general. and
(ii) be suitable for a manual audit equivalent to that of a paper ballot voting system.
(iii) The individual permanent paper records produced pursuant to subparagraph (a) shall be used as the official records for purposes of any recount or audit conducted with respect to any election for Federal office in which the voting system is used.
(iv) In the event of any inconsistencies or irregularities between any electronic records and the individual permanent paper records, the individual permanent paper records shall be the true and correct record of the votes cast.

 

SECTION [ ] REQUIREMENT FOR RANDOM AUDITS TO ENSURE COMPLIANCE WITH MANDATORY FEDERAL ACCURACY STANDARDS FOR VOTING SYSTEMS
(a) IN GENERAL An amendment to verify the accuracy of equipment used in elections requiring the Secretary of State to establish and publish procedures for random selection of equipment and for hand counting voter verifiable paper ballots; a specified transparent method of accumulating county totals from precinct results; a post-election audit of 5% of each type of voting machine and ballot-counting machine used in the state, randomly selected except that at least one machine of each type used in each county will be selected; hand-counting the voter-verifiable paper ballots of the machines selected for the audit; and additional audits when the error rate of a machine exceeds the maximum error rate allowed by the Help America Vote Act of 2002.
(b) PROCEDURES TO BE ESTABLISHED No less than one month before the first general election following the enactment of this bill, the Secretary of State shall establish and publish
(i) procedures to be employed in selecting voting machines and ballot counting machines for the audits mandated in paragraph (d) of this section that shall ensure that:
a. the selection will be made on an entirely random basis in which all the voting machines and ballot counting machines used in the election have an equal chance of being selected, except that
b. 5% of the voting machines and ballot counting machines of each type used in the state will be selected, and
c. at least one voting machine or one ballot counting machine from each county will be selected, and
d. if a county employs more than one type of voting machine or ballot counting machine in the election, at least one of each type of voting machine or ballot counting machine will be selected from that county.
(ii) clear and detailed procedures to be used in hand counting voter verifiable paper ballots.
(iii) standards for determining what is and what is not considered a vote when hand counting the voter verifiable paper ballots.
(c) PUBLIC ANNOUNCEMENT OF INITIAL COUNTY TOTALS Immediately upon the completion of the initial count of the votes for each contest in each precinct,
(i) a report of the precinct totals including individual totals for each voting machine and ballot counting machine used in the precinct shall be signed by poll workers and prominently posted at the precinct, and
(ii) a copy of this report, signed by poll workers, shall be delivered to the county, and
(iii) such precinct reports from all precincts in the county shall be tallied using a method independent of any central tabulator used to determine county totals.
(iv) The results of the accumulated tally of the precinct reports calculated in sub-paragraph (c) (iii) shall be compared to the totals calculated by the central tabulator, if any, and in the case of any inconsistencies the accumulated tally of the precinct reports shall be considered the correct initial totals.
(v) Immediately upon completion of the process specified in sub-paragraph (c) (iv) , the county shall announce the county totals, detailing totals for each precinct and each voting machine employed in the election, and these totals shall be considered the initial county totals.
(vi) If there were any inconsistencies, it shall be announced publicly and investigated by the County Clerk. If any inconsistency is determined to be caused by a software error in the central tabulator, the software error shall be corrected before the central tabulator is used in another election.
(d) PROCESS FOR CONDUCTING AUDITS After each general election a mandatory audit shall be conducted in accordance with the following procedures:
(i) Not later than two weeks prior to each general election the Secretary of State shall publish a list of all voting machines and ballot counting machines to be used in the election, including those reserved for use in case of emergency and assign each machine a unique identifying number to be used in the random selection process described in paragraph (b) (i).
(ii) Not later than 24 hours after the announcement of the initial county totals as described in sub-paragraph (c) (iii) of this Section, the Secretary of State shall use the procedure established pursuant to paragraph (b) to select from the list of voting machines and ballot counting machines published pursuant to paragraph (d) (i) a list of machines to be audited using the procedure specified below.
(iii) For each selected machine used to count ballots from only one precinct, the ballots from that precinct will be used for the audit.
(iv) For each selected optical scan ballot counting machine used to count ballots from multiple precincts, precincts counted by that ballot counting machine shall be selected randomly until the total number of ballots in the selected precincts equals at least 200. The ballots from the selected precinct(s) will be used for the audit.
(v) With respect to selected voting machines that were employed in early voting and election day (but not including provisional ballots), hand counts of the voter verifiable paper ballots counted and/or produced by those voting machines in accordance with Section ___ of this bill shall be conducted for all Federal and Statewide contests and the results of that hand count shall be compared with the initial county totals for those contests.
(vi) With respect to ballot counting machines employed to count absentee and provisional ballots, hand counts of the ballots counted by those ballot counting machines shall be conducted not later than 24 hours after the announcement of the initial totals of such votes, and the results of that hand count shall be compared with the initial totals.
(vii) If during the process of the hand count, marking errors on optical scan ballots are identified they shall be noted and those ballots shall be separated and preserved independently.
(viii) As soon as practicable after the completion of an audit conducted under this section the results of the audit and a comparison with the initial totals shall be announced and published.
(ix) The results of the hand count of the voter verifiable paper ballots conducted under this paragraph shall be considered the true and correct results.
(e) ADDITIONAL AUDITS Additional Audits shall be conducted if inconsistencies are found between hand counts and initial county totals as follows:
(i) If there are inconsistencies between the hand count of voter verifiable paper ballots and the initial totals that cannot be attributed to marking errors identified pursuant to sub- paragraph (c) (vii) and
a. if the inconsistencies are confirmed by a second hand count, and
b. if the inconsistencies yield an error rate greater than the maximum acceptable error rate allowed by the Help America Vote Act of 2002, Section 301(a)(5), the voter verifiable paper ballots counted and/or produced by a second voting machine or vote counting machine of the same type, selected randomly from the same county shall be hand counted for all Federal and Statewide contests and the results of the hand count and the initial totals from that machine shall be compared. or,
c. in the case of an optical scan ballot counting machine used to count ballots from multiple precincts, if the inconsistencies yield an error rate greater than the acceptable error rate referenced in sub-paragraph (e) (i) b, the remainder of the ballots counted on that machine shall be hand counted for all Federal and Statewide contests, and the results of the hand count shall be compared to the initial totals.
d. If inconsistencies are found in the second audit described in sub-paragraphs (e) (i) b or (e) (i) c that yield an error rate greater than the acceptable error rate referenced in sub- paragraph (e) (i) b, the voter verifiable paper ballots counted and/or produced by all voting machines and ballot counting machines of that type in the county in which that machine was used shall be hand counted for all Federal and Statewide contests.
e. If in three or more counties, inconsistencies occur that yield error rates greater than the acceptable error rate referenced in sub-paragraph (i) b on the same type of voting machine, a hand count of the voter verifiable paper ballots shall be conducted for all Federal and Statewide contests on all voting machines of that type in all counties.
(i) The results derived from the hand counts of the voter verifiable paper ballots conducted under this paragraph shall be considered the true and correct totals.
(ii) All machines found to have an error rate greater than the acceptable error rate referenced in sub-paragraph (e) (i) b shall be examined and the malfunction repaired before any of those machines may be used in another election.
(iii) All software errors detected as a result of this audit process shall be investigated and corrected before any equipment that used that software in that election is used in another election in the state. A report of such investigation and correction shall be made public.